State v Peter [2006] PGNC 236; 2006-3-23 (23 March 2006)

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CRIMINAL LAW – indictable offence – Criminal Code, Division V.2 (homicide etc) – Section 302 (manslaughter) – sentence on plea of guilty – sentencing guidelines – woman stabbed her husband with a kitchen knife, inflicting fatal wounds, in the course of a domestic dispute – intention to do serious harm – sentence of 12 years.

A woman was angry with her husband who was staying with his second wife. She walked two kilometres in the middle of the night to the house in which he was sleeping. She was armed with a knife. She found him, argued and had a fight with him during the course of which she stabbed him in the back, inflicting a fatal wound.

Anna Max Marangi v The State (2002) SC702
Antap Yala v The State (1996), SCR 69/96, unreported
Manu Kovi v The State (2005) SC789
Rex Lialu v The State [1990] PNGLR 487
The State v Aaron Lahu (2005) N2798
The State v Elizabeth Gul CR No 375 of 2005, 09.05.05, unreported
The State v Hiliong Gunaing (2005) N2803
The State v Mark Kanupio and Others (2005) N2800

cm – centimetres
CR – criminal case reference
CS – Correctional Service
J – Justice
N – National Court judgment
NBPOL – New Britain Palm Oil Limited
No – number
PNG – Papua New Guinea
SC – Supreme Court judgment
SCR – Supreme Court Review

The accused pleaded guilty to manslaughter and the reasons for sentence are given below.

1. CANNINGS J: INTRODUCTION: This is a decision on the sentence for a woman who pleaded guilty to the offence of unlawful killing, also known as manslaughter, committed against her husband.

2. The incident giving rise to the charge took place at Bebere, near Kimbe on 29 September 2005. It was alleged that the accused stabbed her husband to death with a kitchen knife.

3. On 13 February 2006 the accused appeared before the National Court and faced the following indictment:

Kila Peter of Watut, Aisiki, Menyamya, Morobe Province, stands charged that she on the 29^th day of September 2005 at Bebere Division One in Papua New Guinea unlawfully killed Peter Anis.

5. The following allegations were put to the accused for the purpose of obtaining a plea.

6. At 4.00 am on 29 September 2005 the deceased, the accused’s husband Peter Anis, was sleeping at Bebere Division One, Nahavio, near Kimbe, with his second wife. The accused went into the house in which they were sleeping. She and the deceased started fighting. The fight continued outside. The accused pulled out a knife and stabbed the deceased once in the back. Somebody else removed the knife but the deceased bled to death. The accused surrendered herself to New Britain Palm Oil security guards later in the morning. There was no lawful justification or excuse for what she did.

7. The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. She is now referred to as the offender.

9. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of her response follows:

I have two sons aged seven and six years. We live at Mosa. On the night of the incident I walked from Mosa to Bebere. When I arrived the other woman saw me and ran away. I told my husband ‘you don’t think of me and the children’. He assaulted and insulted me. He held my hands behind my back. When I was struggling to get my hands free I stabbed him in the back. I surrendered to the company security guards. My husband’s relatives told me ‘if you are in gaol, who is going to look after the children’. I am worried about them and do not know where or how they are.

10. Though the prisoner has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in her favour, may be relevant to the sentence.

11. In two recent Kimbe cases I have set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor’s summary of the facts. Those cases are The State v Mark Kanupio and Others (2005) N2800, which deals with issues arising from the depositions, and The State v Aaron Lahu (2005) N2798, which deals with issues arising from the allocutus.

12. The allocutus discloses a number of mitigating factors that are not disputed by the prosecution:

13. In the police interview, conducted on 4 November 2005, the accused claimed that she had no intention of killing her husband. She said that she walked alone in the middle of the night from Mosa to Bebere (a distance of 2 kilometres). She carried the knife for her own protection.

14. The depositions contained a photograph of the knife. It was a black-handle tramontina kitchen knife, 27.5 cm in length and 2 cm in width.

15. The investigating officer stated that the offender cooperated fully with the police.

16. The deceased, Peter Anis, was a crane operator with NBPOL. He lived with his parents at Bebere Division One. His father, Gabriel Ivok, is employed by NBPOL as a harvester.

A person who unlawfully kills another under such circumstances as not to constitute wilful murder, murder or infanticide is guilty of manslaughter.

18. Mr Oiveka referred to the mitigating factors arising from the allocutus: the deceased had another woman and was not looking after his family properly; the offender pleaded guilty, saving the trouble and expense of a trial; she is a first time offender, never having been in trouble with the law before.

19. Mr Popeu submitted that the offender was guilty of a serious offence. The court should not lose sight of the fact that a life has been lost and the maximum penalty for this offence is life imprisonment. Penalties for manslaughter have been on the increase. He referred to the Supreme Court’s decision in Anna Max Marangi v The State (2002) SC702, Jalina J, Injia J, Sawong J. A woman pleaded guilty to the manslaughter of a woman who she suspected was having an affair with her husband. The court reviewed the sentencing guidelines for uncontested manslaughter cases in a domestic setting and suggested that the following categories be used:

20. The case fits into the second Marangi category and accordingly the penalty should be 8 to 12 years imprisonment. However, in the more recent case of Manu Kovi v The State (2005) SC789 (Injia DCJ, Lenalia J, Lay J) the Supreme Court reviewed sentencing guidelines for all manslaughter cases. Applying those guidelines would result in a sentence of 13 to 16 years imprisonment.

21. Mr Popeu submitted that the present case was more serious than a similar case recently decided in Kimbe. In The State v Elizabeth Gul, CR No 375 of 2005, 09.05.05, unreported, the offender stabbed her husband to death during a domestic argument that centred on his alleged affair with another woman and his failure to care for the offender and the children of their marriage. She pleaded guilty to manslaughter and was sentenced to 10 years imprisonment. In Gul the offence was committed in daylight whereas in the present case it was committed in the middle of the night after the offender walked two kilometres armed with a knife.

22. Mr Oiveka replied that the offender’s case was very similar to that of Elizabeth Gul, as in both cases the deceased had contributed to their demise by their marital infidelity and their failure to care for their children. The fact that the offender walked some distance in the middle of the night should not be held against her. She was obviously very emotional about her predicament and the court should accept that what she did was not unprovoked.

23. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the prisoner. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, is summarised below.

The offender, of Morobe parentage, was brought up in Kumbango, near Kimbe, where her parents worked for NBPOL.

She is 28 years old – her two brothers and two sisters live in WNB – father deceased – mother living at Dagi, near Kimbe – no formal education or employment – illiterate – no income – relies on her mother for support – health OK.

She is very worried about her two sons who she thinks have been taken away by the deceased’s relatives.

Reasonable family and community support for the offender in the event that she is released.

The parents of the deceased have asked for K13,000.00 compensation. If that is paid, they would support a suspended sentence. The offender has already paid K1,100.00 of wari moni to ease tension with the deceased’s relatives.

The report concludes that the offender is a suitable candidate for probation supervision.

24. To determine the appropriate penalty I will adopt the following decision making process:

25. The maximum penalty for manslaughter is life imprisonment. The court has discretion to impose a lesser prison sentence or to impose a range of alternative penalties under Section 19 of the Criminal Code.

26. I accept that the starting point for working out the head sentence should be identified by considering both Anna Marangi’s case and Manu Kovi’s case. In Marangi the court noted that historically manslaughter cases occurring in the home tended to attract lower sentences. But that has changed, particularly since the Supreme Court’s decision in Antap Yala v The State (1996), SCR 69/96, unreported, Amet CJ, Salika J, Injia J, where the view was expressed that the National Court had been too lenient on sentencing for manslaughter in a domestic setting.

27. I uphold Mr Popeu’s submission that this case falls into the second Marangi category. Though only one knife wound was inflicted it was clearly a savage and lethal one, inflicting a deep and fatal wound. That would mean that the starting point would be 8 to 12 years.

28. In Manu Kovi v The State (2005) SC789, Injia DCJ, Lenalia J, Lay J, the Supreme Court suggested that manslaughter convictions could be put in four categories of increasing seriousness, as shown in the table blow.

SENTENCING GUIDELINES FOR MANSLAUGHTER DERIVED FROM SUPREME COURT’S DECISION IN MANU KOVI’S CASE

No	Description	Details	Tariff
1	Plea – ordinary cases – mitigating factors – no aggravating factors.	No weapons used – offender emotionally under stress – de facto provocation – killing in domestic setting – killing follows straight after argument – minimal force used – victim had pre-existing disease that caused or accelerated death, eg enlarged spleen cases.	8-12 years
2	Trial or plea – mitigating factors with aggravating factors.	Use of offensive weapon, eg knife, on vulnerable parts of body – vicious attack – multiple injuries – some deliberate intention to harm – some pre-planning.	13-16 years
3	Trial or plea – special aggravating factors – mitigating factors reduced in weight or rendered insignificant by gravity of offence.	Dangerous or offensive weapon used, eg gun, axe – vicious and planned attack – deliberate intention to harm – little or no regard for sanctity of human life.	17-25 years
4	Worst case – trial or plea – special aggravating factors – no extenuating circumstances – no mitigating factors, or mitigating factors rendered completely insignificant by gravity of offences.	Some element of viciousness and brutality – some pre-planning and pre-meditation – killing of harmless, innocent person – complete disregard for human life.	Life imprisonment

29. I agree with Mr Popeu that the present case falls within category No 2 of Manu Kovi, which gives rise to a starting point of 13 to 16 years. Manu Kovi is a more recent decision than Anna Marangi. Therefore I will apply the Manu Kovi guidelines while at the same time paying close attention to the dicta in Anna Marangi. I point out that when I decided Elizabeth Gul’s case the Supreme Court had not delivered judgment in Manu Kovi.

31. I will now set out the things I consider should be taken into account when determining whether to increase or decrease the head sentence or leave it within the starting point range. I rely on my decision in a manslaughter case, similar in some respects to the present case, dealt with last year in Kimbe: The State v Hiliong Gunaing (2005) N2803. A man suspected his wife of having an affair with another man. He followed her one night to the other man’s house and found them there. He chased her, she fell down and he stabbed her, inflicting a fatal wound. He pleaded guilty and was sentenced to 15 years imprisonment.

33. The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

34. Another thing to note is that there are, in general, three sorts of considerations listed.

35. Numbers 1 to 9 focus on the circumstances of the incident that led to the death. All manslaughter cases are bad. The death that has occurred is invariably unnecessary and tragic. But the circumstances of each incident are different. Some are worse than others. These considerations are intended to capture the circumstances of the incident.

36. Numbers 10 to 14 focus on what the offender has done since the incident and how she has conducted herself.

37. Numbers 15 to 17 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered. As pointed out by the Supreme Court in Rex Lialu v The State [1990] PNGLR 487, Kapi DCJ, Hinchliffe J, Jalina J, a list of considerations or sentencing criteria of this sort is not meant to be exhaustive.

41. The other factors are not significantly mitigating (Nos 2, 12 and 15), not significantly aggravating (Nos 3, 9 and 16) or neutral (Nos 1 and 7).

42. After weighing all these factors and bearing in mind that there are five strong mitigating factors compared to four strong aggravating factors, a sentence just below the starting point range is appropriate.

44. The pre-sentence report makes quite a strong case for suspension of a substantial part of the sentence. However, I am concerned about the reaction from the deceased’s relatives if the offender were to be released now, given that the incident happened less than six months ago.

45. The court must also be mindful of the fact that the offender took the life of her husband in a vicious manner. The danger in suspending the sentence immediately is that it would tend to condone this sort of behaviour by women against men in the country. I will not suspend any part of the sentence at this stage.

46. I will nonetheless qualify the prison sentence by ordering that it can be suspended after the offender has served a minimum term of imprisonment if before the expiration of the term prescribed the National Court approves a post-release parole period with strict conditions attached. A separate application would need to be made and there would have to be an updated report from the Community Corrections and Rehabilitation Service. The behaviour of the offender in gaol would also be a relevant consideration. The issue of compensation could also be addressed. Proof of genuine steps towards peace and reconciliation between the offender and the relatives of the deceased would be viewed favourably.

48. Step 6 of the sentencing process, referred to above, will not be considered at this stage.

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Peter [2006] PGNC 236; 2006-3-23 (23 March 2006)